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Business Immigration in a Minute by Honigman LLP

February 1, 2021
  • On January 27, 2021, U.S. Immigration and Customs Enforcement’s (“ICE”) Student and Exchange Visitor Program announced that it will NOT be creating a new Optional Practical Training (“OPT”) Employment Compliance Unit that was intended by the former administration to focus on investigating, referring, and reporting employer and student violations of OPT programs.
  • As a result of the spread of COVID-19, President Biden signed a proclamation on January 25, 2021 continuing the suspension of entry of particular travelers from the Schengen Area (the 26 member countries of the Schengen Area are listed here), the United Kingdom, the Republic of Ireland, Brazil, China, and Iran, and expanding restrictions to include travelers from South Africa.  However, U.S. citizens and lawful permanent residents (“green card holders”) are not subject to these travel restrictions as well as those granted National Interest Exceptions.
  • On January 20, 2021, the White House issued a memorandum placing a regulatory freeze on many Department of Homeland Security (“DHS”) rules that have not yet been finalized or have not yet taken effect. The memorandum states that (1) all rules pending at the Federal Register that have not been published must be immediately withdrawn and (2) agencies must "consider" postponing the effective dates for regulations that have been published, but not yet taken effect, for 60 days from the memorandum's date.  Of note, the DHS final rule clarifying how USCIS will determine whether there is an "employer-employee relationship" has been withdrawn.  Further, the final rule creating a wage-based selection process for H-1Bs may, upon further agency action by the Department of Labor (“DOL”), be postponed until March 21, 2021.  Finally, the final rule on the computation of prevailing wage levels has been proposed by the DOL to be delayed until May 15, 2021.
  • This past week, the Office of Foreign Labor Certification (“OFLC”) announced that it will work to comply with the modified order from the U.S. District Court for the District of Columbia in Purdue University v. Scalia, No. 20-cv-3006 (D.D.C. Dec. 14, 2020) and Stellar IT, Inc. v. Scalia, No. 20-cv-3175 (D.D.C. Dec. 14, 2020). This order directs the OFLC to re-issue certain prevailing wage determinations that were issued between October 8, 2020 and December 4, 2020 pursuant to the Interim Final Rule Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States, for petitions filed under the H-1B, H-1B1, and E-3 temporary programs and PERM labor certification program.  The re-issued wage determinations will be issued under the pre-October 8, 2020 wage levels.
  • The U.S. Department of State released its Visa Bulletin for February 2021. In addition to final action dates and dates for filing for employment-based petitions, it contains information on visa availability in the future months and an annual report of immigrant visa applicants in the employment-based preference categories registered at the National Visa Center as of November 1, 2020.  For February 2021, employment-based applicants must use the dates for filing chart.
  • On January 27, 2021, ICE announced an extension of the flexibilities in rules related to Form I-9 compliance that was granted earlier this year. Due to the continued precautions related to COVID-19, DHS has extended this policy until March 31, 2021.

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